The New Jersey Supreme Court’s decision unanimously disregarding New Jersey election law to place Frank Lautenberg on the ballot should have come as little surprise, at least in outcome. What is surprising, however, is the court’s complete failure to analyze the difficult questions that will inevitably arise because of their decision—problems with absentee balloting which could prevent a final winner from being determined until long after November.

As Princeton’s Robert P. George points out on National Review Online, this New Jersey court has garnered a well-deserved and infamous reputation for decisions that are—to borrow a phrase—well outside the mainstream. If previous examples of judicial temperament weren’t enough to indicate the direction of the court in this case, a brief perusal of campaign finance reports also provided court watchers with some additional insight. Justice James Zazzali gave $1,000 to Torricelli’s present campaign, and he and his wife contributed $2,500 in previous years to Torricelli and his PAC. Justice Zazzali also contributed $1,000 to Lautenberg’s 1994 campaign. Justice LaVecchia’s husband gave $2,000 to Torricelli’s current campaign, and Justice Long’s husband gave $250 to Torricelli’s 1996 campaign. Then there is Justice Albin, who was rushed into office so quickly that his public oath ceremony happens today. Justice Albin contributed $1,000 directly to Torricelli’s current campaign, and gave another $500 to a PAC which in turn contributed $2000 to the Torch. He also contributed $1,500 to Torricelli’s 1996 campaign, and $500 Lautenberg’s 1994 campaign. I’d mention recusal, but that seems beside the point now.

Given the court’s reputation, the outcome was about as predictable as a West Wing script. What is surprising, however, is the court’s failure to even pay lip service to the statute which is supposed to guide their inquiry. I know that it is too much to ask the court to actually apply the law, but I would have at least have liked a good show. After years of reading Brennan opinions, I expect judges to pretend that they are interpreting a statute, even if what they are really doing is re-writing it.

Here, however, the court did not re-write the statute, but rather "interpreted" it out of existence. New Jersey law provides a procedure for filling vacancies occurring "not later than the 51st day before the general election." The New Jersey Supreme Court only makes one reference to the statute, in which it notes (without quoting the law) that the statute "does not preclude the possibility of a vacancy occurring within fifty-one days of the general election." It is at this point that one wonders if the court was even trying. Yes, under the statute, it is metaphysically possible that a vacancy, as that term is ordinarily used, could occur within 51 days of an election. After this digression through the obvious, the court fails to take the next step, which is question what the statute requires when such a vacancy occurs. The answer is clear: by providing for a procedure which shall be applied to vacancies "not later than the 51st day," the statute does not permit that same procedure to be used to fill vacancies after the 51st day. To read the statute any other way is to make the number 51 superfluous in the statute, which is precisely what the court did. Given the New Jersey Court’s ruling, the deadline is now whenever the New Jersey Supreme Court says it is.

Of course, the 51-day requirement was not superfluous. The legislature requires filing deadlines not only to prevent the manipulation of the process, but also to assure the orderly administration of elections. What is about to ensue will be anything but orderly. The absentee ballots have already been mailed, and the counties will now be required to mail new ballots. But what happens to the old "Torricelli" ballots? Will all the Torricelli ballots be considered void on their face? This would seem to be problematic, particularly if a voter does not receive the "Lautenberg" ballot in time and therefore is only capable of voting with the Torricelli ballot. It also raises the question of what should be done if the voter writes in Lautenberg on the Torricelli ballot. Given the potential for ambiguity, you can be assured that the rallying cry of voter intent will be heard again. On the other hand, assuming that the Torricelli ballots aren’t considered automatically void, then the question becomes what to do if a voter submits both ballots. Ordinarily, if someone votes twice, both votes are cancelled. Here such a cancellation doesn’t seem appropriate, given that the voter received two ballots because of the caprice of the state. But which ballot do you count? While a first glance may suggest that the Lautenberg ballot is the one which should count, this fails to take into account the possibility of voter mistake as to which is the most recent or valid ballot. Accordingly, it may be impossible to divine the intent of a voter who mails in multiple ballots.

Of course, the absentee ballot issue will only become an issue if the vote is close. If it is, however, you can be assured that the New Jersey Supreme Court’s decision, which failed to even consider this issue, will prevent a resolution of the election for some time.

The only remaining question is what happens to the current New Jersey lawsuit from here. The Republican lawyers have promised an appeal to the U.S. Supreme Court. The U.S. Supreme Court generally defers to state supreme court’s on interpretations of state laws, so the most powerful argument is not squarely on the table. Yes, if the U.S. Supreme Court was as free-wheeling as the New Jersey Supreme Court, it could disingenuously find some kind of substantive Due Process right in having courts actually interpret the law rather than acting by caprice. But such a decision would force them to reverse the entire decade of the 70s, so I wouldn’t count on that happening any time soon. An argument regarding disenfrachisement of absentee voters is more promising, but the Supreme Court is unlikely to step in given the speculative nature of the claims.

The best argument is one which harkens back to the issue of legislative authority found in the concurrence in Bush v. Gore. Under art. I, section 4: "The Time, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof . . . ." Accordingly, to the extent that the New Jersey Supreme Court asserted its own "equitable powers" to supercede the time, place, and manner requirements of the legislature found in the 51-day requirement, the court has usurped the legislature’s constitutionally designated role. This case is actually much clearer than Florida: there it was argued that the Florida court reached its decision based upon a strained interpretation of the statute, whereas here the court did not bother with any statutory window dressing, but instead relied solely on its own equitable power.

An opinion on the related language concerning legislative authority in art. II, section 1 garnered three votes in Bush v. Gore, so it will be interesting to see if these three are joined by one more Justice who finds the question worthy of hearing. Given the harsh criticism of the Bush v. Gore decision, I fear that the court won’t take the case. While there may be strong prudential reasons for the court to avoid another election quagmire, it will be a shame if the court ducks the issue. Given the relative strength of the art. I constitutional argument, and the extraordinary weakness of the New Jersey ruling, this would provide an apt vehicle to clarify what is now a repeated question of election law.

Robert Alt is an Adjunct Fellow of the John M. Ashbrook Center for Public Affairs at Ashland University, Ohio.